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White House aides can be subpoenaed, federal judge rules

WASHINGTON — A federal judge Thursday rejected the Bush administration's sweeping assertion of executive privilege and ruled that two White House aides must answer subpoenas from Congress.

However, U.S. District Judge John Bates said the aides could cite executive privilege and refuse to answer specific questions once they were in front of Congress.

The 93-page ruling by the Bush appointee is a significant setback for the administration as it seeks to prevent chief of staff Joshua Bolten and former White House counsel Harriet Miers from providing Congress with information about the firings of nine U.S. attorneys.

The Bush White House has maintained that presidential aides have absolute immunity from congressional subpoenas. It argues that the doctrine of executive privilege provides that protection to ensure confidential communications between the president and his aides. That position raised questions involving the separation and balance of powers under the Constitution between the legislative and executive branches.

Bates said the courts had a crucial role in resolving such disputes and that administration officials held "a discredited notion of executive power and privilege."

"It is the judiciary (and not the executive branch itself) that is the ultimate arbiter of executive privilege," he wrote.

House Judiciary Committee Chairman John Conyers, D-Mich., hailed the decision as "landmark" and vowed to call Miers as early as September. "The ruling is a ringing reaffirmation of the fundamental principle of checks and balances and the basic American idea that no person is above the law," Conyers said.

While Bates rejected the executive branch's claim of "absolute" immunity, he allowed the White House to decline to answer specific questions for legitimate reasons, provided that administration figures do so in person before lawmakers. He also ordered administration officials to provide nonprivileged documents, but didn't order them to divulge the entire list of documents they assert are protected by executive privilege.

"The court holds only that Ms. Miers (and other senior presidential advisers) do not have absolute immunity from compelled congressional process in the context of this particular subpoena dispute," he wrote. "There may be some instances where absolute (or qualified) immunity is appropriate for such advisers, but this is not one of them."

Bates said the decision didn't apply to the president. He urged both sides to negotiate a resolution and warned Congress against relying on its inherent contempt powers, which allow it to arrest witnesses who refuse to testify.

White House spokeswoman Dana Perino said the Justice Department was reviewing the ruling to determine whether to appeal. She said the administration disagreed with the decision, but she noted its limits.

White House aides can be subpoenaed, federal judge rules 07/31/08 [Last modified: Friday, August 1, 2008 1:15pm]
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